Shaked: Judges are not the sons of light, legislators are not sons of darkness

Hayut says ministers, MKs disrespecting the court should be ashamed

December 22, 2017 09:47
4 minute read.
Justice Minister Ayelet Shaked (Bayit Yehudi).

Justice Minister Ayelet Shaked (Bayit Yehudi).. (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)


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Justice Minister Ayelet Shaked kicked off her campaign to limit the High Court of Justice’s interventions, declaring that “judges are not the sons of light and legislators are not the sons of darkness.”

In the speech before the Israel Association for Public Law in Zichron Ya’acov on Thursday night, Shaked said that the High Court’s ideology was too much based on purist philosophical principles in the clouds, detached from the daily repercussions of its decisions.

“The court sees the other- worldly Jerusalem and not the south Tel Aviv of this world,” she said in a critical reference to the many times that the court has struck down the state’s migrant policy.

The justice minister, along with Education Minister Naftali Bennett, proposed major legislation on Tuesday, designed to empower the Knesset and the executive branch at the judicial branch’s expense.

Supreme Court President Esther Hayut responded just as strongly, saying that while she believed that a robust debate between the judicial and legislative branches was healthy, that “unfortunately, the manner in which... ministers and MKs... have expressed themselves... toward the judicial branch... is an embarrassing example.”

Hayut also said that the courts have shown great patience, sometimes waiting for over a decade, for the Knesset to resolve major issues such as the integration of Haredim into the IDF and in order to avoid a confrontation.

The court president said that unfortunately, in many instances the Knesset declines to resolve the issues and inequalities posed by current laws or policies.

Shaked, positioning her speech as a response to criticism of her proposed bill, had explained that she remembered the state of Israeli law prior to the “constitutional revolution” of the 1990s. She said the legal system then was more balanced and was not “arbitrary, harmful and brutal,” as critics of her bill say its impact will be. Moreover, she said that the High Court revolution caused “Israeli democracy to run away from the nation.”

In the 1990s, the High Court declared a number of new, quasi-constitutional principles, including greater authority for the judiciary to declare laws unconstitutional, on the basis of a group of laws that the Knesset passed known as the Basic Laws.

The Basic Laws enshrine in law many of the basic principles that are the foundation of many democracies and constitutions, such as the individual right to dignity and equality.

Supporters of the court say that the constitutional revolution was necessary in the absence of a constitution even decades after the state’s founding. But critics say that the revolution went too far and that the court has declared too many Knesset laws and government policies unconstitutional.

Shaked said criticism of her initiative came from a “deep fear” by various “detached old elites” that they would lose control of the system.

Many judicial rulings “are written with a fancy judicial pen, but life” and the concrete issues impacting people that are the subject of the court’s rulings “are much stronger,” she said.

Next, she said that her bill is modeled after rules used by many Western democracies.

Attacking the court’s decision a week ago blocking the government from holding onto terrorists’ remains as bargaining chips due to the absence of an explicit law granting it that authority, Shaked asked rhetorically whether the court has ever been bothered that its authority to declare laws unconstitutional is not stated in any law.

She implicitly accused the court of treating the will of the people, as embodied in its elected representatives in the Knesset, as mainly of procedural significance and as something that the court could ultimately decide to ignore in favor of an individual’s rights.

Some of the main points in the proposed legislation would be that the High Court could only veto Knesset laws in rare circumstances, such as where a full nine-justice panel would hear an issue, and only with a two-thirds vote of the justices.

Currently, a panel of three justices can veto a Knesset law, and a bare majority vote against a Knesset law renders it null and void.

Further, under the bill, the Knesset could override a High Court veto with a 61-vote absolute majority, and the High Court would not have the power to veto Basic Laws or certain procedural laws.

Representatives of the opposition parties the Zionist Union, Yesh Atid, Meretz and Joint List have all fiercely slammed the bill as anti-democratic.

It was unclear whether Prime Minister Benjamin Netanyahu would support the legislation, and predictions were that the Kulanu coalition party would oppose it as invading the court’s independence.

Hayut responded to some of Shaked’s other claims, saying, “if someone thought that respecting the legislative or executive branch means turning a blind eye from violating the rule of law or a disproportionate harm to human rights – he is mistaken.

“Just so, someone who thought that governing means the exercising of power with no limits, oversight or balance... is mistaken,” said the court president.

Hayut added that the independence of the High Court has often protected Israel from international criticism, implying that a weaker court could endanger that legal shield.

Attorney-General Avichai Mandelblit, who swings between supporting Shaked and supporting the High Court on these issues, was also due to speak at the conference.

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